PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THE KVANETWORK.COM WEBSITE AND ASSOCIATED APPLICATIONS (the "Platform") ARE COMPRISED OF VARIOUS WEB PAGES, APPLICATIONS, AND FEATURES OPERATED BY KVA NETWORK, INC. (“KVA”). BY ACCESSING OR USING THE PLATFORM, ANY OF ITS PAGES, SCREENS, OR FEATURES, YOU AGREE THAT YOU ARE BOUND BY THESE TERMS AND CONDITIONS OF USE AS THEY MAY BE AMENDED FROM TIME TO TIME. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS OF USE, PLEASE EXIT AND CEASE USE OF THE PLATFORM IMMEDIATELY.
The terms “we,” “our,” and “us” refer to KVA, its parent companies, subsidiaries, and affiliates, and the terms “user,” “you,” or “your” refer to any individuals or entities who use or access the Platform.
The Platform allows persons and entities who seek to buy certain items to connect with persons or entities selling such items. The term “Buyer” refers to a person or entity buying or attempting to buy goods through the Platform. The term “Seller” refers to individuals or entities that purchase or attempt to purchase goods through the Platform.
BY ACCESSING OR USING THE PLATFORM, YOU AGREE AND CONSENT TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS OF USE (THE “TERMS”) WITHOUT LIMITATION OR QUALIFICATION.
YOU UNDERSTAND AND AGREE THAT KVA PROVIDES TECHNOLOGY SERVICES THAT HELP FACILITATE A MARKETPLACE BETWEEN BUYERS AND SELLERS. IN NO EVENT SHALL ANYTHING CONTAINED ON THE PLATFORM BE CONSTRUED TO CREATE A DUTY OF CARE OR TO CONSTITUTE A REPRESENTATION BY US TO BE RELIED UPON BY YOU IN ANY MANNER WHATSOEVER. WE TAKE NO RESPONSIBILITY FOR ANY TRANSACTIONS BETWEEN YOU AND ANOTHER PLATFORM USER FACILITATED THROUGH THE PLATFORM. THE PLATFORM SOLELY SERVES AS A PASSIVE CONDUIT, AND WE DO NOT CONTROL THE QUALITY, SAFETY, OR LEGALITY OF THE TRANSACTIONS OF USERS FACILITATED THROUGH THE PLATFORM, NOR DO WE ENDEAVOR TO DETERMINE THE TRUTH OR ACCURACY OF INFORMATION POSTED ON THE PLATFORM, A USER’S ABILITY TO SELL ITEMS OR PERFORM SERVICES, OR A USER’S ABILITY TO PURCHASE ITEMS OR SERVICES. WE CANNOT AND DO NOT GUARANTEE THAT ANY TRANSACTION WILL BE COMPLETED.
YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR TRANSACTIONS FACILITATED THROUGH THE PLATFORM. BY USING OR ACCESSING THE PLATFORM, YOU ACCEPT THE INHERENT RISKS IN DEALING WITH OTHER USERS OR THIRD-PARTIES WHOSE IDENTITIES HAVE NOT BEEN VERIFIED, MAY BE UNDER AGE, MAY BE ACTING UNDER FALSE PRETENSES, OR MAY BE ATTEMPTING TO DEFRAUD OTHERS, INCLUDING YOU. YOU AGREE TO ACCEPT AND ASSUME SUCH RISK AND ACKNOWLEDGE THAT WE ARE NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF OTHER USERS OR THIRD-PARTIES ON THE PLATFORM.
YOU UNDERSTAND AND AGREE THAT WE HAVE NO CONTROL OVER THE EXISTENCE OF, QUALITY, OR SAFETY OF ANY ITEM PURCHASED THROUGH THE PLATFORM, AND WE DO NOT CONTROL WHETHER THE BUYER OR SELLER INVOLVED IN THE TRANSACTION WILL COMPLETE THE TRANSACTION. ANY DECISION OF A USER TO OFFER AN ITEM FOR SALE AS A SELLER, OR PURCHASE AN ITEM AS A BUYER, IS MADE IN THAT USER’S SOLE DISCRETION AND AT THAT USER’S OWN RISK. USERS ARE IN NO WAY BOUND OR REQUIRED TO OFFER ITEMS FOR SALE OR TO PURCHASE ITEMS THROUGH THE PLATFORM; SUCH DECISIONS ARE FULLY VOLUNTARY BY THE USER.
Except as otherwise set forth herein, you may terminate your use of the Platform services at any time by ceasing your use of the services, and, if applicable, deactivating your KVA Network Member Account. Even if you terminate your Member Account and cease using the Platform services, you will still be obligated for the bids you have made on the Platform and any payments that you owe for your use of the Platform up until that point.
If you breach any of these Terms, your permission to use the Platform automatically terminates. If we become aware that you have been using the Platform in violation of these Terms, we may block or suspend your access to the Platform, bar you from future usage of the Platform, or take any other action we deem necessary or appropriate, and may pursue any or all legal or equitable claims against you for such violation. We further reserve the right, in our sole discretion, to refuse, suspend, or terminate your access to the Platform, your Member Account, or any of our resources or services, at any time, without cause. We shall not be held liable to you or any third party for any termination of your access to the Platform.
You agree to indemnify and hold us harmless from any liability, loss, claim or expense including attorney’s fees, related to your violation of these Terms or your use of the services, products, software, applications, or information made available through the Platform.
Use of the Platform is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, but not limited to, the liability, indemnification, arbitration, and jurisdiction sections contained herein below.
Unauthorized use of the Platform is prohibited. The following uses of the Platform or the services provided thereon are expressly unauthorized:
We reserve the right to modify or terminate the Platform, any of its features, or any service available on the Platform, any link, embed, platform, widget, or feature used by the Platform, in whole or in part, at any time whatsoever.
From time to time the Platform may undergo maintenance or become unavailable due to unforeseen reasons (“Down Time”). You acknowledge and agree that we assume no responsibility and shall not be liable for any loss or damage, including, but not limited to, loss of profits, anticipated revenue, savings or goodwill, or other economic loss arising out of or in any way connected with the Down Time.
You acknowledge that KVA has common ownership with and is otherwise related to T&R Electric Supply, Inc. (“T&R Electric”), Colman Transportation, Inc. (“Colman”), and Colman Logistics, Inc. (“Colman Logistics”), which may be users of the Platform. T&R Electric specializes in rewinding and reconditioning power and distribution transformers and selling the same. The Platform operates as an open marketplace for the buying and selling of transformers and surplus electrical equipment for purposes including, but not limited to, direct sales, reselling, brokered sales, surplus inventory and scrap/salvage operations. Colman provides transportation services and is one of the shipping options offered to Platform users. Colman Logistics is a brokerage company that is used to hire other companies’ trucks to haul freight. You consent to T&R Electric, Colman and Colman Logistics being users and members of the Platform and further acknowledge and agree that (a) such use and membership does not conflict or contradict with any representations of KVA; and (b) KVA is not a party to any Auction Listings or Classified Listings or any of the resulting transactions. As such, you further acknowledge and agree that we shall not in any way be liable for the acts or omissions of T & R Electric, Colman or Colman Logistics, and T & R Electric, Colman and Colman Logistics shall not in any way be liable for the acts or omission of KVA.
We are not responsible for the conduct, whether online or offline, of any user of the Platform or any transactions facilitated through the Platform. You are solely responsible for your interactions with other Platform users. You acknowledge and agree that we cannot guarantee that each Platform user, including, but not limited to, a Buyer or Seller, is who he, she, or it claims to be, and you agree that we are not responsible or liable in any way for false representations made by any Platform user, Buyer, or Seller, including any false representations made by minors in violation of these Terms. Please use common sense when using the Platform and services provided through the Platform, including, but not limited to, conducting your own due diligence before purchasing or selling any item. By using the Platform and participating in services or transactions facilitated through the Platform, you agree to accept all risks associated with use of the Platform and the services provided thereon, and you agree that we are not responsible for the acts or omissions of users of the Platform or users participating in the services or transactions facilitated by the Platform. You further agree that we reserve the right, but shall have no obligation, to monitor or otherwise involve ourselves in any disputes among users.
As a Platform user, you acknowledge and agree that: (a) Your participation in and on the Platform is at your own risk; (b) We take no responsibility for the Listings posted by you or other Platform users or for any communications about you or between you and other Platform users; (c) We, in our operation of the Platform, are simply serving as a passive conduit and do not control the quality, safety or legality of any interactions between users of the Platform, or any information posted by any persons or entities on the Platform, nor do we endeavor to determine the truth or accuracy of any messages posted by third parties or any other content or information posted by third parties on the Platform; and (d) We shall be entitled to the immunities afforded to an Interactive Computer Service under the Communications Decency Act, 47 USC § 230, as it may be amended.
Visiting or using the Platform or sending emails to us constitutes electronic communications. You consent to receive electronic communications from us and agree to notify us of any changes in your email address. Except as otherwise required under applicable law, you agree that all agreements, notices, and other communications that we provide to you electronically, via email and on the Platform, satisfy any legal requirement that such communications be in writing.
You authorize us to contact you at any number you provide, including by sending text messages or other communications to a cell phone using an automatic telephone dialing system or an artificial or prerecorded message. You acknowledge that any text messages or prerecorded messages sent by us may contain sales or marketing content. We will only send you a text message for the purposes to which you have consented. If you wish to opt out of receiving certain or all text messages from us, you may do so in your Member Account. However, you acknowledge that opting out of receiving all texts may impact your use of the Platform and services facilitated through the Platform. Charges from your cellphone carrier may apply to the text messages we send you.
Membership. You may elect to create an account with the Platform (a “Member Account”), whereby you become a member. In order to place Auction Listings or Classified Listings on the Platform, or bid on Auction Listings (as those terms are defined herein), you must be a member of the Platform. Moreover, members posting Auction Listings or Classified Listings must accept the terms and conditions of the Seller Agreement.
Mailing Address. You acknowledge and agree that in order to become a member, we, in our sole discretion, may require you to provide your mailing address as a pre-condition to becoming a member and participating in the Platform. We reserve the right, in our sole discretion, to verify your mailing address.
Account Authority and Security of Your Member Account. Any individual or entity that sets up a Member Account on the Platform must have authority to set up an account in that name. You agree that you will not set up a Member Account on the Platform without proper authority and authorization, and you represent to us that you have such authority and authorization.
If you use the Platform, you are solely responsible for maintaining the security and confidentiality of your Member Account, including, but not limited to, your user name, password, and for restricting access to your computer or mobile device. By using the Platform, you further agree to accept responsibility for all activities that occur on or under your Member Account utilizing your user name or password. You may not assign or otherwise transfer your Member Account to any other person or entity, or allow another person or entity to use your Member Account at any time. Any user names or passwords used for the Platform are for the use of one user only. You acknowledge that we are not responsible for third party access to your Member Account that results from theft or misappropriation of your username, password, Member Account, computer, or mobile device. You agree to notify us immediately if you suspect there has been a breach of security of, or unauthorized access to, your Member Account.
We are entitled to monitor your password, and, at our discretion, require you to change it. If you use a password that we consider unsecure, we are entitled to require the password to be changed or to terminate your Member Account. You understand that providing your user name or password to a third party without our authorization, or using a password to gain unauthorized access to the Platform, may constitute fraud, which is a class 5 felony under the laws of the state of South Dakota (see S.D. Codified Laws Ann. §43-43B-1 to 8), and may further constitute a violation of Title 18, §1030 of Federal law, which is punishable by fine and/or imprisonment. You acknowledge we may monitor password use and vigorously pursue violators to the full extent of the law.
You acknowledge and agree that we are not responsible for any information you provide, publish, or post to the Platform, including to or through your Member Account, or any information you disclose to other users or the public through the Platform. You acknowledge that any information you post, publish, or provide to the Platform may be visible to certain users of the Platform, or the greater public. You acknowledge that the information you provide, publish, or post to the Platform could be used by other Platform users to harass, hurt, or otherwise harm you. Please carefully consider and select the type of information that you post on the Platform or provide through the services available on the Platform, or release to others generally. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Platform users.
You understand and agree, without limitation, we may cancel your Member Account, or other access to the Platform at any time, for any or no reason.
Fees. There is currently no membership fee for the general use of the Platform or for Buyers. However, there are fees associated with the placement of Auction Listings or Classified Listings (“Seller’s Fees”) on the Platform, which are further outlined in the Seller Agreement. We maintain the right to change any of our fees, or implement new fees, at any time and in our sole discretion.
Account Deactivation. You may deactivate your Member Account at any time, by following the links to Customer Support and providing a notice of your intent to deactivate your Member Account along with your username and the e-mail address on record. However, your Member Account shall not be deactivated until any Listings upon which you have bid are closed. If you are awarded a bid after you send notice deactivating your Member Account, you must still complete the purchase of the awarded product. All bids are binding and irrevocable offers to purchase. Once we have determined that all of your bids have been awarded, and Listings on which you have bid have closed, we will deactivate your Member Account.
The Platform may provide links to other websites for the convenience of Platform users. The Platform may also make use of widgets, embeds, social media, or other third party features that are hosted by a third party or hosted directly on the Platform. Your interactions with any link or third party widget, embed, social media, or other feature are governed by the terms and conditions of use of the third party providing the widget, embed, social media, or other third party feature, or the terms and conditions of use of the linked website. The terms and conditions of use of third parties may be substantially different than these Terms. We neither own nor control third party websites, widgets, embeds, social media, or other features that are accessible through the Platform. Therefore, before visiting the website of a third party, or making use of a third party feature on the Platform, whether by means of widget, embed, social media feature, or otherwise, you should first consult that third party’s terms and conditions of use (if any) and inform yourself of the terms applicable to that third party’s website, feature, or services (if any). We are not responsible for any dealings with third parties you may have through a third party website, link, widget, embed, social media, or other third party feature.
You may be asked or have the option to review your interactions with Buyers and Sellers on the Platform based upon a transaction or attempted transaction with such Buyer or Seller. You may also be asked or have the option to review goods on the Platform. The rating system will be based on a five (5) star rating system, with one (1) star being the poorest rating, and a five (5) star being the best rating. Each participating user will be notified regarding the transaction upon which it has been rated by another party.
The feedback you provide or comments about a particular Buyer or Seller may or may not be public and viewed by other users or members of the Platform. You acknowledge and agree that we may, in our complete and sole discretion, delete or remove any of your feedback or comments. You further agree to provide such reviews honestly and in good-faith, and not to defame or falsely review Buyers, Sellers, or any good, product, or service that you review on the Platform. In addition, you agree that you will not utilize the rating system in a manner that is inaccurate, untruthful, fraudulent, or in bad-faith including, without limitation, rating yourself or rating competitors with whom you were not involved in a transaction. You covenant, represent, and warrant that all information that you provide, is and will be truthful and accurate to the best of your knowledge. Moreover, in connection with the ratings, you agree that you shall not: (a) trade reviews or positive ratings with other businesses; (b) accept compensation, in the form of monetary or non-monetary compensation, for providing or removing a certain rating; (c) rate any other Platform user unless you engaged in business with that user through the Platform, and (d) represent any other Platform user in a false light in your review.
By entering into a transaction, you acknowledge and agree that you make yourself available to be rated via the star-rating system, and you fully authorize anyone involved in a transaction or attempted transaction with you to provide a star-rating about you; any comments or ratings you receive may or may not be public, and viewed, by other Platform users. You forego all standing to make a claim of defamation or raise any other related issues with respect to the manner in which you were rated. You further acknowledge that we are not responsible for the ratings you may receive (including, but not limited to, being responsible to improve the ratings you have received), and that you are solely responsible for any damage caused by the users’ ratings, feedback, or comments you receive, and that you fully and knowingly accept the risk of such damage. You additionally acknowledge and agree to forego any standing to make a claim of defamation, libel, or any other related issues in connection with the ratings, feedback or comments provided by other users.
If you choose to rate another Platform user via the star-rating system or provide comments based upon your interactions with that user, you must do so within one hundred and twenty (120) days from the date of your transaction or attempted transaction with that user. If you fail to do so within this period of time, you will no longer have the opportunity to rate or otherwise comment upon the user involved in that transaction. By providing ratings and any comments, you waive any and all privacy expectations that you may have in and to that rating or comment, and authorize the Platform to freely use the same.
Buyers and Sellers agree that if your rating falls below three stars, your ability to serve as a Buyer or Seller on the Platform may be terminated or your Member Account terminated. If your rating falls below three stars, you may receive a limited amount of time to increase your rating, in our full discretion. If you fail to improve your rating during any designated time period established by us, your Member Account may be terminated, and your ability to serve as a Buyer or Seller on the Platform may be terminated. Ratings are considered Submissions and are subject to all terms and conditions guiding the treatment of Submissions on the Platform as detailed in the “Submissions” section of these Terms.
If you believe that you have received a review or rating in violation of these Terms, and wish to challenge such review or rating, please contact us at email@example.com with an email containing: your name, Member Account information, transaction involved, the user from which you received the challenged review or rating and the date of such review or rating, and the reason or reasons why you believe that the review or rating you received was in violation of these Terms and should be removed from the Platform. We will review requests to remove ratings or reviews from a Member Account, and will determine what action should be taken, if any, in our sole and absolute discretion.
Any description of a product, service, or publication on the Platform (including any description or reference via hyperlink) does not imply endorsement by us of that product, service, or publication; this includes, but is not limited to, Auction Listings or Classified Listings on the Platform. Moreover, the inclusion of any third party link, social media feature, embed, or widget on the Platform does not imply an endorsement by us or any association with its third party operator.
You are granted a non-exclusive, non-transferable, revocable license to access and use the Platform, or any software, digital products, applications, or services provided by the Platform, strictly in accordance with these Terms. As a condition of your use of the Platform, or any software, digital products, applications, or services provided by the Platform, you warrant to us that you will not use the Platform, or any software, digital products, applications, or services provided by the Platform, for any purpose that is unlawful or prohibited by these Terms. You may not use the Platform, or any software, digital products, applications, or services provided by the Platform, in any manner which could damage, disable, overburden, or impair the Platform or any software, digital products, applications, or services provided by the Platform, or interfere with any other party's use and enjoyment of the Platform or any software, digital products, applications, or services provided by the Platform. You may not obtain, or attempt to obtain, any materials or information through any means not intentionally made available or provided for through the Platform, or any software, digital products, applications, or services provided by the Platform. Using software, applications, or digital products from the Platform does not give you title to such software, applications, or digital products, including any files, data and images incorporated in or associated with the software, applications, or digital products.
Except for use expressly authorized, you agree that you will not copy, modify, publish, transmit, distribute, reverse engineer, perform, display, participate in the transfer or sale, license, create derivative works, reproduce, decompile or disassemble, or in any way exploit any of the content, in whole or in part, found on the Platform, or in any software, application, or digital product we provide you. The Platform and its content, along with the software, applications, and digital products available on the Platform, are copyrighted by us or its owner. Our content is not for resale. Your use of the Platform, software, applications, or digital products does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of KVA and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of us or our licensors except as expressly authorized by these Terms.
You further agree that: (1) You will not provide any false information on the Platform; (2) You will not create an account except for yourself or for a third party that has explicitly authorized you to do so; (3) If we suspend or close your account, you will not create another one without our explicit permission; (4) All information you provide to us, including contact information such as telephone number and email address, and your Listing information, shall be kept true, accurate, complete, and up-to-date; (5) You will not transfer your account to anyone without first getting our written permission; (6) Downloading, scraping, exporting, copying, extracting, capturing Listing information, phone numbers, or any content found on the Platform for the purpose of creating a collection, compilation, database, or directory, or redisplay or distribution of any data or content without the express written permission of KVA is strictly prohibited, and you will not partake in such activities; (7) You will not mirror or archive any part of the Platform, or any material contained on the Platform, on any server or computer without KVA’s written permission; (8) We reserve the right to use fictitious information, including, but not limited to, fictitious Member Accounts or Listing information, to test and develop Platform content and features and to help identify any third-party that uses, calls, or displays the Platform content on any other website without express written permission of KVA and will seek maximum punitive monetary damages according to law to protect the information displayed on the Platform; (9) By using the Platform, you may be exposed to KVA confidential information, including, but not limited to, technical, customer, financial, strategic, and other confidential and proprietary information relating to KVA’s business and operations, and information about other users, such as their contact or Listing information (“Confidential Information”), which may be disclosed to you for the purposes contemplated in these Terms. You agree that you shall not disclose or permit disclosure of Confidential Information to third-parties and shall adopt reasonable security measures to avoid inadvertent disclosure or the information falling into the public domain. Notwithstanding the above, you shall not be liable for disclosure of Confidential Information that was: (i) disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that you provide prompt notice of such court order or other requirement to enable KVA to seek a protective order or otherwise restrict or prevent such disclosure; (ii) disclosed with KVA’s prior written consent; (iii) in the public domain at the time it was disclosed by KVA or entered the public domain through no fault of yours; (iv) known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; or (v) becomes known to you, without restriction, from a source other than KVA without breach of these Terms by you and otherwise not in violation of KVA’s rights; and (10) All rights not expressly granted herein are reserved by us.
If we have reasonable grounds to suspect that you have violated any of these obligations, we may suspend or terminate your access to the Platform, revoke your license, terminate your access to the Platform services, and may refuse any and all current or future use of the services, software, application, product, Platform, or license. We further reserve the right to remove or modify Platform content at any time whatsoever, including services provided through the Platform or Member Accounts, in our sole discretion.
The Platform may contain bulletin board services, electronic mail postings, news groups, forums, communities, personal web pages, calendars, email, chat, or other message or communication facilities designed to enable you to communicate with the public at large, or with a group (collectively, "Communication Services"), you agree to use the Communication Services only to post, send, and receive messages and material that are proper, relevant, and related to the particular Communication Service and its intended subject matter.
By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer or electronic device; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages for buying or selling for that specific type of good or service; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including e-mail addresses, without their consent; or violate any applicable laws or regulations.
We have no obligation to monitor the Communication Services and are not liable for any messages, material or information posted to, sent or received through the Communication Services. However, we reserve the right to review materials posted to a Communication Service and to delete, remove, edit, or decline to post any materials in our sole discretion. We reserve the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
We reserve the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in our sole discretion.
Always use caution when giving out any personally identifying information in any Communication Service. This information may be visible to the public and we cannot guarantee the security of any information you post in a Communication Service. If you provide contact information to a third-party via any of our Communication Services, or in your Submissions (as defined below), we are not responsible for, and you hereby release us from liability and will indemnify and hold us harmless from, any contacts or communications you may have with that third-party, including, but not limited to, contacts or communications by email, text message, phone call, or meetings in person. We do not control or endorse the content, messages, or information found in any Communication Service, and we specifically disclaim any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction, or dissemination. You are responsible for adhering to such limitations if you upload the materials.
Any content, remarks, suggestions, feedback, testimonials, ideas, graphics, reviews, comments, advertisements, listings for products or services (including Auction Listings and Classified Listings), ratings, or other information communicated to us through the Platform (together, the "Submissions") which you post, input, or submit to the Platform or our associated services is considered to be non-confidential and public. We do not claim ownership of your Submissions, however, you hereby grant to us the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display all Submissions alone or as part of other works (including, without limitation, for products or advertising) in any form, media, or technology whether now known or hereafter developed, without incurring any liability for royalties or any other consideration of any kind, and to sublicense such rights through multiple tiers of sublicensees. You agree that we shall not be liable as a result of any similarities that may appear between Submissions and our future operations or content.
You agree that all Submissions provided on the Platform are the sole responsibility of the person or entity from which the Submissions originated, and that you are responsible for any Submissions that you post on the Platform. By posting, uploading, inputting, providing, or submitting your Submissions, you warrant and represent that you own or otherwise control all of the rights to your Submissions as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions. You further represent and warrant that you are the sole author of all Submissions you post or submit to the Platform, and that such Submissions do not infringe upon the copyright, trademark, privacy, publicity, or other rights of any person or entity. You agree we are not liable or responsible for any Submissions made by you or other third parties, and your reliance on any Submission is at your own risk.
By way of example, and not as a limitation, you agree your Submissions will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer or electronic device; conduct or forward surveys, contests, pyramid schemes or chain letters; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Platform; violate any code of conduct or other guidelines which may be applicable for any particular Submission; harvest or otherwise collect information about others, including e-mail addresses, without their consent; or violate any applicable laws or regulations.
We have no obligation to monitor Submissions. However, we reserve the right to review and to delete, remove, edit, move, or decline to post any Submissions on the Platform in our sole discretion. You are exclusively responsible for the accuracy of all Submissions you post or submit to the Platform, including, but not limited to, the accuracy of information provided about the product in your Listing. If you believe information in your Submission is incorrect, you must amend, delete, or flag such Submission immediately, or if you have concerns with our services regarding your Submission, you must notify us immediately. If any information in your Submission is found to be fraudulent, we reserve the right to immediately deactivate your Member Account and remove your Submissions without any form of compensation or advance warning.
No compensation will be paid with respect to the use of your Submissions, as provided herein. We are under no obligation to post or use any Submissions you may provide, and we may remove any Submission at any time in our sole discretion.
WE MAKE NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY WITH REGARD TO ANY COMMUNICATION, SUBMISSION, OR OTHER TRANSMISSION MADE BY OR THROUGH THE PLATFORM, WHETHER TO US, THROUGH A POST TO THE PLATFORM, OR TO ANOTHER USER. We specifically reserve the right, and you hereby authorize us, to monitor transmissions over the Platform and its related networks for maintenance, service, quality control assurance or any other purpose permitted by the Electronic Communications Privacy Act, 18 U.S.C. §2701, et. seq. We take no responsibility for information sent to us that is intercepted by third-parties.
All content on the Platform whether provided by the Platform or through links, widgets, embeds, or social media or other third party features, is the copyrighted work of us, the owner(s) of the links, widgets, embeds, or social media or other third party features, or the owner(s) of Submission(s). Except as stated herein, none of the content of the Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior express written permission of us, the owner(s) of the links, widgets, embeds, or social media or other third party features, or the owner(s) of Submission(s), with the exception that Platform content may be shared through social media, so long as such sharing maintains a true and official link back to the Platform and the shared content is unaltered.
Any trademarks, service marks, or logos appearing on the Platform are our property or the property of the party that provided the trademarks, service marks, or logos to us. We and any party that provided trademarks, service marks, or logos to us retain all rights with respect to any of the respective trademarks, service marks, or logos appearing in the Platform, whether registered or not. You agree to observe and abide by all copyright, trademark, and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto, and you agree that you will not violate the intellectual property rights of others as a Platform user.
If you create any materials bearing KVA’s trademarks, service marks, designs, or logos, whether registered or not, (“KVA Marks”) (in violation of these Terms or otherwise), you agree that upon creation of such materials, KVA exclusively owns all right, title and interest in and to the materials, including any modifications to the KVA Marks or derivative works based on the KVA Marks. You further agree to assign any interest or right you may have in such materials to KVA, and to provide information and execute any documents as reasonably requested by KVA to enable KVA to formalize such assignment. It is our policy to respond expeditiously to claims of trademark infringement. We will promptly process and investigate notices of alleged infringement of the KVA Marks and will take appropriate action under the protocol set forth herein and applicable intellectual property laws. We may elect to terminate access for any user who we believe in our sole discretion to be an intellectual property infringer, regardless of whether proven or not.
Violating the trademark or copyright rights of others is a violation of our Terms. Nothing on the Platform shall be construed as conferring any license under any intellectual property right, including any right in the nature of trademark or copyright, of KVA or any third party, whether by estoppel, implication, or otherwise. All trademarks and trade names are the property of their respective owners. Except as otherwise noted, KVA is the owner of all trademarks and service marks on the Platform, whether registered or not.
We provide the following procedures for making a Digital Millennium Copyright Act (DMCA) claim or counter-claim.
Notice and Procedure for Making Claims of Copyright Infringement. In accordance with the Digital Millennium Copyright Act (DMCA), we have a designated agent to receive notice of unauthorized online use of copyrighted materials on the Platform. If you believe that your copyrighted work is being infringed, please notify our copyright agent specified below.
KVA Network, Inc.
ATTN: Legal Department
301 South Florence Avenue
PO Box 174
Colman, South Dakota 57017
Please notify us in writing and include all of the following:
Procedure for making a DMCA Counter Notification. If you have had material that you placed online removed pursuant to a DMCA infringement complaint and feel that it is not in fact an infringement, you can submit a counter notification. Please send a written counter notification of copyright infringement containing the following information to our designated agent specified below.
KVA Network, Inc.
ATTN: Legal Department
301 South Florence Avenue
PO Box 174
Colman, South Dakota 57017
Please notify us in writing and include all of the following:
We will not respond to counter notifications that do not adhere to the listed requirements. We will deliver your counter notification to the original individual who filed the DMCA copyright infringement complaint informing them that the removed material will be replaced within 10-14 business days following notification. Once the notification has been delivered we are authorized to reinstate the removed material and cease disabling access 10-14 business days following the receipt of the counter notice unless we receive notice that the original individual is proceeding with a court order against you.
Possession of an Injunction. If we receive a notification and appropriate accompanying documentation from a copyright holder to our designated agent that they are in possession of an injunction that prohibits us from providing access to the infringing material, you will be informed as soon as we are able and we will follow the requirements as set forth in the injunction.
An auction listing (“Auction Listing”) is an announcement for the sale of a product, which shall act as a platform where buyers can bid on the product, with the highest bidder generally, but with exceptions, being awarded the product. Sellers may place an Auction Listing, which may include a product listing, a minimum bid that will be accepted by the Seller, product transfer information, the time period for which the bid will be open, and the Seller’s preferred payment method. If a Buyer would like to bid on the product, the Buyer may place a bid that is greater than the highest previous bid, by entering the price they would pay for the product. At any time the Buyer may enter a new bid with a greater purchase price. A Buyer may bid as many times as he/she/it likes until the close of the Auction Listing.
A bid shall be considered a binding and irrevocable offer to purchase. This means that if you win an auction or are awarded the product, you must purchase the product for the price you bid. You must conduct any investigations or due diligence that you deem necessary or recommended to evaluate the Auction Listing, the fairness of the price, the quality of the product being offered in the Auction Listing, and the reliability of the proposed Seller, before submitting your bid. You will not be allowed to renegotiate the purchase price, cancel the agreement, or decline to purchase the product. By placing a bid, you are agreeing to comply with any and all of the terms conveyed by the Seller in connection with the Auction Listing. These terms may include, but are not limited to, all specifics regarding payment including, without limitation, whether or not all or part of the payment must be paid immediately after the Auction Listing closes and prior to shipment; the time-frame within which payment is to be received by Seller; shipping terms; and any other terms that Seller dictates in the Auction Listing. By placing a bid, you are accepting all the terms of the Auction Listing.
Before placing a bid or agreeing to buy a product, you should carefully review all of the Seller’s terms contained within that Listing and understand the product description. Many disputes occur because the parties misunderstand what is being transferred. In order to prevent any confusion, it is important to carefully review and understand the entire Listing. If you do not understand part of an Auction Listing or have a question about the Auction Listing, you should contact the Seller before placing a bid.
As set forth above, by entering a bid, you are agreeing to pay the amount you have bid and are deemed to have accepted any terms and conditions listed in the Auction Listing. You may not retract a bid. When you place a bid, you form a binding, irrevocable offer to buy the product. If you disagree with a term or cannot comply with one of the terms listed in the Auction Listing, you should not place a bid. Without limiting our general right to terminate a Member, you acknowledge that, as a Buyer, your Member Account may be suspended or terminated if you fail to pay for a product or otherwise fail to meet the standards articulated in an Auction Listing.
Notwithstanding the foregoing, you acknowledge that the Seller has the unfettered right to accept or reject a bid, including, without limitation, the highest bid. In other words, Sellers shall not be obligated to finalize a sale pursuant to an Auction Listing, including with the highest bidder. Moreover, Sellers may elect to extend the Auction Listing or terminate it early. Sellers may also reject a bid and relist the product that is subject to that bid in the same or different Auction Listing. You hereby consent to the same, even if it prejudices your rights to purchase the product featured in the Auction Listing.
You shall not knowingly bid on an item you are selling, or bid on an item listed by family members, employees, agents, representatives or any companies owned or controlled by you. You should not assist, request, or entice others to do so on your behalf. We may elect, in our sole discretion, to terminate or suspend your Member Account and use of the Platform if you are found to have placed a Fraudulent Bid (as defined below). Without limitation, we consider a bid on a product made with the intent of trying to raise the selling price of the product, without the intention to purchase the product, to be a fraudulent bid (“Fraudulent Bid”). Further, these types of bids are illegal in many places and may result in criminal charges.
A classified listing (“Classified Listing“) is an announcement for the sale of a product, which shall be used to connect Buyers and Sellers. A Buyer may review the Classified Listing; and if he/she/it is interested in purchasing the product described in the Classified Listing, contact the Seller. If multiple Sellers are listing the same or similar items, the Buyer may contact multiple Sellers. A Seller may include within the Classified Listing a description of the product, price for the product, the preferred payment method, and a way to contact the Seller. Once contacted, the Buyer and Seller will negotiate the terms and conditions of the sale of the product. It will be up to the Buyer and Seller to come to an agreement regarding the terms of the sale. Until the Buyer and Seller mutually determine that an agreement to purchase the product has been reached, neither party is bound to purchase or sell the product. Buyer acknowledges that a Seller may negotiate with several Buyers at once.
Buyer may send any questions or inquiries to the Sellers regarding any Auction Listings or Classified Listings (collectively herein “Listings”) through the Platform. You, in your capacity as a Buyer may select to have your question or inquiry displayed publicly or privately. If you select to have your question or inquiry displayed publicly, you acknowledge and agree that the question or inquiry and the Seller’s response to same may be displayed on the Platform in connection with the Listing.
We are not a party to any Auction Listings or Classified Listings or any of the resulting transactions. As such, we will not assist in resolving any disputes between Buyers and Sellers. Your participation in the Platform, or in purchasing an item through a Listing, is at your own risk, and is solely between you and the Seller. We do not endorse, warrant, guarantee or assume responsibility for any product or service advertised or offered by a Seller or any third party, including, without limitation through a Listing. We shall not be a party to, or in any way responsible for, monitoring transactions between you and other Platform users. Moreover, and without limitation, we assume, and have, no liability, obligation, or responsibility for any part of such communications, including without limitation, where a Platform user perpetuates fraud through a Listing. You hereby waive and release us from any and all claims that you may have against us arising out of a Listing or other communication or business dealing with another Platform user. Without limitation, and without limiting any limitation of liabilities otherwise provided herein, you acknowledge and agree that we shall have no liability whatsoever for any damages, direct, special, incidental, treble, exemplary, indirect, consequential or otherwise, loss of profits, anticipated revenue, savings, clients or goodwill, or other economic loss arising out of your response to a Listing or your other use of the Platform. You agree to comply with all local laws, rules and regulations, including but not limited to those applicable to online conduct and acceptable Internet content when using the Platform, including when bidding on an Auction Listing or responding to a Classified Listing.
We will not assist you with the negotiations of a transaction or help you resolve a dispute with a Seller. All refunds and returns must be coordinated between the Buyer and the Seller. Further, if a Seller fails to deliver you the product you bought, your suggested recourse is to attempt to recover your payment for the product from the Seller or adhere to the protocols set forth by the applicable Payment Processor. We will not reimburse you for any payments you make for a product you do not receive. We are not a party to the transaction and will not help you resolve any issues resulting from the transaction.
Pursuant to California Civil Code Section 1789.3, California residents are hereby advised of the following:
Indemnification. You agree you will indemnify, hold harmless and defend KVA, its parent companies, subsidiaries, related entities and affiliates, and any of their members, shareholders, directors, officers, managers, owners, employees, attorneys, representatives or agents of any of the foregoing (collectively with KVA, the “Company Parties“) with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorneys’ fees and expenses of the Company Parties’ selected attorney(s), relating directly or indirectly to (i) your infringement of any intellectual property of any person or entity, including without limitation, patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights; (ii) any failure by you to comply with these Terms; (iii) your use, misuse, or inability to use of the Platform, its content, or any of the goods or services provided through or on the Platform; (iv) your interactions with any Platform users; (v) your defamation, libel, slander or other tortious act against a third party; (vi) a breach of any representations, guarantees, covenants, or warranties provided by you to us or another user; or (vii) any act or omission or willful misconduct by you that results in a claim for breach of any representations, warranties or covenants made herein against any of the Company Parties. You acknowledge and agree that the Company Parties may select and utilize their own attorneys in their sole discretion.
Attorneys’ Fees. If any of the Company Parties undertake any action to enforce these Terms, such party will be entitled to recover from you, and you hereby agree to pay, any and all attorneys’ fees and any costs of litigation, in addition to any other relief at law or in equity to which such party may be entitled. In such event, Company Parties shall be entitled to recover all costs including both actual pre-judgment and post-judgment attorneys’ fees and costs, involved directly or indirectly in its enforcement efforts, whether or not it does so through institution of formal legal proceedings.
DISCLAIMER. You explicitly agree that use of the Platform, including, without limitation, the Listings, is at your own and sole risk. THE PLATFORM AND ALL MATERIALS CONTAINED THEREIN ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Neither we nor the Platform make any representations or warranties that the Platform will operate in a timely, secure or error free manner; nor do we or the Platform make any representations or warranties as to the quality, fitness, truth, accuracy, currency, reliability or wholeness of the Platform or any of the materials contained thereon, including without limitation, the Listings. The Platform may be modified or discontinued at any time with or without reason and with or without notice to you, without liability to you or any third party. Furthermore, neither we nor the Platform make any warranty as to the results that may be obtained from the use of the Platform. You also understand and agree that any material or data downloaded or otherwise obtained through the use of the Platform or any of the Listings contained thereon is at your own discretion and risk. You will be solely responsible for any damage to your computer system or loss of data that results from the download of such material or data. You understand that we cannot and do not guarantee or warrant that files available for downloading from the Platform will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. We make no warranty regarding any use or disclosure of confidential or private information you may provide. We may change any of the Terms found on the Platform at any time without notice. We make no commitment to update or keep current the information found on the Platform. THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THESE TERMS, IF ANY, ARE THE ONLY WARRANTIES AND REPRESENTATIONS WITH RESPECT TO YOUR USE OF THE PLATFORM AND THE TRANSACTIONS CONDUCTED AS A RESULT OF YOUR USE OF THE PLATFORM. THERE ARE NO OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, THAT MAY ARISE EITHER BY AGREEMENT BETWEEN YOU AND US OR BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY SPECIFICALLY DISCLAIMED. Some jurisdictions do not allow the elimination of certain warranties, so some of the above exclusions may not apply to you. However, this shall be limited, and only those exclusions prohibited by that jurisdiction shall be excluded and severed from the remainder of the other warranties, limitations and exclusions which shall remain in full force and effect to the maximum extent permitted by law.
Further, we are not responsible for your conduct or the conduct of any other users, whether online or offline. Under no circumstances shall we be responsible for any loss or damage, including, without limitation loss of profits, anticipated revenue, savings or goodwill, or other economic loss, emotional distress, other personal injury or death, resulting from the use of the Platform, or the conduct of you or any other users, whether online or offline.
LIMITATION OF LIABILITY. WE ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING OF THE PLATFORM, OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE PLATFORM. EXCEPT WHERE SPECIFICALLY REQUIRED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (I) ANY USE OF, MISUSE OF, OR INABILITY TO USE THIS PLATFORM OR ANY OF THE CONTENT FOUND THEREON, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS PLATFORM FOR COMMUNICATING WITH OTHER USERS, PLACING A LISTING, RESPONDING TO A LISTING OR THE INTERRUPTION OF PLATFORM ACCESS OR AN AUCTION LISTING), OR (III) THE PERFORMANCE OR NON-PERFORMANCE BY US, INCLUDING, BUT NOT LIMITED TO, NON-PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.
If, notwithstanding the foregoing, we should be found liable for any loss or damage which arises out of or is in any way connected with any of the above described functions or uses of the Platform, or any of our goods or services, our liability shall in no event exceed US $100.00. Some states do not allow limitations of liability, so the foregoing limitation may not apply to you.
RELEASE. BY UTILIZING THE PLATFORM, YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS WHICH YOU MAY HAVE AGAINST US, ANY OF THE COMPANY PARTIES, AND THEIRAFFILIATES, PARTNERS, SERVICE PROVIDERS, VENDORS AND CONTRACTORS AND EACH OF THEIR RESPECTIVE AGENTS, ATTORNEYS, SHAREHOLDERS, DIRECTORS, OFFICERS, OWNERS, MEMBERS, MANAGERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES BASED ON ANY ACT, EVENT OR OMISSION, ANDFROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO OR ARE CONNECTED WITH THE USE OR MISUSE OF THE PLATFORM, THE LISTINGS, AND ANY AND ALL GOODS AND SERVICES RELATED THERETO.YOU FURTHER WAIVE, RELEASE AND GIVE UP ANY AND ALL CLAIMS AND DEFENSES ARISING FROM OR RELATING TO ANY ACT, EVENT OR OMISSION DIRECTLY OR INDIRECTLY RELATED TO THE USE OR MISUSE OF THE PLATFORM. WITHOUT LIMITATION, YOU FURTHER UNCONDITIONALLY AND IRREVOCABLY FOREVER RELEASE, DISCHARGE AND HOLD HARMLESS US AND THE COMPANY PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, UNLESS REQUIRED TO BE PROVIDED BY STATUTE), INCLUDING, WITHOUT LIMITATION, THOSE BASED ON SLANDER, LIBEL, DEFAMATION, INVASION OF PRIVACY, VIOLATION OF RIGHTS OF PUBLICITY, PERSONALITY, OR CIVIL RIGHTS, DEPICTION IN A FALSE LIGHT, INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, PERSONAL INJURY, COPYRIGHT INFRINGEMENT AND ANY OTHER TORT OR DAMAGES ARISING FROM OR IN ANY WAY RELATING TO YOUR USE, MISUSE, OR INABILITY TO USE THE PLATFORM OR ANY OF THE PRODUCTS AND SERVICES OFFERED THEREIN. THIS FURTHER INCLUDES, WITHOUT LIMITATION, ANY CLAIM WHICH COULD BE ASSERTED NOW OR IN THE FUTURE UNDER (I) THE COMMON LAW; (II) ANY OF THE PARTIES’ POLICIES, PRACTICES OR PROCEDURES; AND/OR (III) ANY FEDERAL, STATE OR LOCAL STATUTES OR REGULATIONS. If you are a California resident, you hereby waive California Civil Code § 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You hereby acknowledge, agree and stipulate that this waiver is being made consciously and with full understanding of the rights that you may be giving up.
Not with standing any termination of your access to the Platform or any deactivation or termination of a Member Account, you acknowledge and agree that your representations and obligations, as well as the disclaimer of warranties, limitation of liability and release of liability here under shall survive and continue in perpetuity.
Dispute Resolution. Subject to the exception set forth herein, you may not institute a suit at law or equity regarding any dispute, whether directly or indirectly related to these Terms or to the use of this Platform or any of our products or services. ALL SUCH CLAIMS OR DISPUTES, WHETHER BETWEEN OR AMONG YOU AND US, SHALL BE SUBMITTED TO BINDING ARBITRATION ADMINISTERED BY A SINGLE ARBITRATOR. IN THAT REGARD AND TO THE GREATEST EXTENT PERMITTED UNDER THE LAW, YOU MAY NOT SUBMIT ALL SUCH CLAIMS OR DISPUTES AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND YOU ACKNOWLEDGE THAT YOU ARE NOT PERMITTED TO INSTATE CLASS-WIDE ARBITRATION. Without limitation, any dispute over the arbitrability of a matter shall be specifically reserved for the arbitrator to exclusively hear, and shall not be submitted to the court. However, notwithstanding the foregoing, either prior to, during or after the arbitration process, either we or you may institute a suit in equity for a temporary injunction (a) to preserve the status quo; (b) to enjoin a breach or threatened breach of these Terms; (c) to obtain specific performance; (d) to compel the arbitration, or further its purposes, or to enforce a settlement or award of such arbitration; and (e) for any other equitable relief.
Arbitration Demand Procedure. A claim or dispute by you or us may only be submitted to binding arbitration if the opposing party is first served with a written demand for same. The party requesting arbitration (the “Requesting Party”) shall provide the opposing party (the “Opposing Party”) with a recommendation for a suggested arbitrator (the “Suggested Arbitrator”) in conjunction with the written demand for arbitration. If the Opposing Party objects to the Suggested Arbitrator, such objection must be set forth in writing and submitted to the Requesting Party within ten (10) days, or the objection shall be waived and the Suggested Arbitrator will be deemed appointed. The objection shall be accompanied by the Opposing Party’s recommendation for an arbitrator. The Requesting Party shall have ten (10) days to submit its objection to the Opposing Party’s recommendation. Thereafter, should the parties be unable to agree upon an arbitrator, the arbitrator shall be chosen by a determination of a court of competent jurisdiction. Either party may make a motion for this determination.
Conference, Discovery and Motions. The arbitrator shall conduct an initial telephone or in-person conference, in the form of a pre-hearing conference to discuss arbitration procedure, within ten (10) days of the arbitrator’s appointment. Both parties to the arbitration shall submit and serve on the other party arbitration statements no later than two (2) days prior to the conference. We and you shall each have the following procedures available, in any order or all at once, with regard to the arbitration: (a) each party may serve up to thirty (30) interrogatories inclusive of subparts which shall be answered within ten (10) days; (b) each party may serve twenty (20) document requests inclusive of subparts which shall be answered within ten (10) days; (c) each party may serve up to thirty (30) requests for admissions which shall be answered within ten (10) days; (d) each party may take up to five (5) depositions, which may be scheduled upon ten (10) days’ notice, as to which all parties shall cooperate in producing and locating witnesses (third party witness attendance may be compelled by issuance of a subpoena); (e) each party may each serve a summary judgment motion(s) or motion(s) to dismiss on the basis that the matter should be disposed of in whole or in part as a matter of law; and (f) either party to the arbitration may serve a motion(s) to dismiss or suppress based upon a failure to respond to discovery. Such motions may be served at any time twenty (20) days after the arbitrator is appointed. The responding party will have ten (10) days to respond to the motions. The motions shall be heard by the arbitrator and disposed of within ten (10) days thereafter and the arbitrator may allow replies and sur-replies in his discretion. Notwithstanding anything to the contrary herein, service under this Dispute Resolution clause shall be deemed complete upon mailing to a party’s counsel, or if pro se, to the party directly with an additional three (3) day period for service by regular mail. Time shall be deemed of the essence in regard to any procedures set forth herein and any requests for extension shall be considered by the arbitrator only upon a showing of good cause. Oral argument shall not be required unless a party requests it. The standards for deciding motions shall be those set forth under the case law of the court having competent jurisdiction over this matter.
Determination, Award and Costs. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, specific performance of any obligation created under these Terms, or the issuance of injunctive relief. The award rendered by the arbitrator in any arbitration under these Terms is final and binding on the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. Each party to the arbitration shall perform all acts, including the execution and delivery of further documents, as the arbitrator determines is necessary or desirable to confirm and carry out the terms of the award rendered. Each party shall initially bear its own costs, expenses and administrative fees and an equal share of the arbitrator’s fees until such time, if at all, a party is awarded its costs, expenses and fees by the arbitrator pursuant to the provision of these Terms relating to the allocation of attorneys’ fees. In the event that there is a disproportionate ratio of plaintiffs, defendants or other parties, the arbitrator may consider a reallocation of arbitrator’s fees and expenses in his sole discretion. If either party needs a translator they shall equally bear that expense. If a third party witness requires a translator, the party calling the witness shall bear the expense. Each party shall bear their own travel costs, and those of any party or witness they bring. If a party or his attorney does not appear at the arbitration hearing the arbitrator shall strike its claims, suppress its defenses, and conduct a proof hearing. The arbitration award may be appealed to a court of competent jurisdiction solely on the basis that the award was arbitrary or capricious.
Jurisdiction. You agree that the laws of the State of South Dakota shall govern these Terms and any dispute, controversy or claim directly or indirectly related to such use without regard to its principles of conflict of laws. Further, you consent to the exclusive jurisdiction of the Third Judicial Circuit in South Dakota or, if federal jurisdiction exists, at the option of either party, to the exclusive jurisdiction of the United States District Court for the District of South Dakota, Sioux Falls Vicinage, to compel an arbitration or enforce an arbitrator’s award. Nevertheless, we shall have the right to institute an action for equitable relief against you in any court, anywhere in the world, as we deem necessary. The jurisdiction provisions of these Terms shall not be deemed to limit that right. Any arbitration shall be conducted in Moody County, South Dakota. Service of the written notice to initiate the aforementioned arbitration shall be deemed complete when sent either as required by Court procedure or by (i) electronic mail to any of your current or future electronic mail addresses; (ii) ordinary mail or ordinary or two-day mail by a commercial carrier, in the event a regular mailing address has been provided by the party upon which service is being effected or is otherwise determined by the serving party; or (iii) otherwise in accordance with the laws and procedures of the State of South Dakota.
Notices. All notices or other communications to us, if any, that are to be given under these Terms must be in writing, in English, which shall be delivered to the address set forth below by way of either personal delivery, certified mail, return receipt requested, two-day mail or overnight mail by a commercial carrier. Notices to us shall be deemed given only upon receipt. Notices to us shall be addressed as set forth below unless we change the address in writing by updating these Terms.
The address for giving notice to us is as follows:
KVA Network, Inc.
ATTN: Legal Department
301 South Florence Avenue
PO Box 174
Colman, South Dakota 57017
Notices to you may be provided by us via email or any other address which we reasonably believe to be associated with you. Notice shall be deemed effective upon sending of the same by us. Moreover, and without limiting the foregoing, by using the Platform, you acknowledge and agree that you are communicating with us electronically, and consent to receive communications from us electronically. We may communicate, and provide effective notice to you, by sending you emails or by posting notices on the Platform. You acknowledge and agree that all agreements, notices, disclosures and other communications that we may provide to you electronically are effective; satisfy any legal requirement that such communication be in writing; and shall be deemed delivered to you. “Opting out” of promotional emails does not allow you to “opt out” of receiving notices, and other communications described above, by email. Any such agreements, notices, disclosures, and other communications sent via email, are effective and still shall be deemed delivered to you.
Successors and Assigns. Whenever the term “we” “our” or “us” is used in connection with these Terms regarding its use with respect to a right, protection or benefit, it shall be construed to encompass KVA, its related entities, successors, assigns, shareholders, officers, directors, members, managers, owners, officers, employees, attorneys and agents. Further, the term “you” or “your” or “user” used in connection with these Terms shall include the user’s related entities, successors, assigns, shareholders, directors, officers, members, managers, owners, employees and agents.
Authorized Permission for Use. You shall be considered an entity if the individual accessing the Platform is doing so on behalf of an entity or is utilizing that entity’s computer system in connection with a task (either paid or unpaid) for that entity. If you are an entity, the person using the Platform on your behalf hereby makes the material representation, personally, and on your behalf, upon which you wish us to rely that such person is authorized to bind you to the Terms, as well as any other obligations imposed or undertaken through use of the Platform.
Further Assurances. You covenant and agree to perform all further acts and execute all supplementary instruments or documents which may be requested by us to carry out the provisions and effectuate the intent of these Terms.
Assignment. We may freely assign our rights and obligations in and to these Terms. You acknowledge that you may not assign, transfer or sell your rights or delegate your obligations under these Terms without our advance written consent, which may be unreasonably withheld in our sole discretion. Any purported assignment in violation hereof shall be null and void, and of no force and effect, and furthermore shall constitute a breach of these Terms.
Severability. One or more provisions of these Terms may be legally prohibited or otherwise unenforceable in certain jurisdictions and not others. In such event, these Terms shall be construed in a manner that is consistent with prevailing law in the jurisdiction in which it is enforced. Therefore, if any provision of these Terms are prohibited or otherwise unenforceable in a jurisdiction where it is being enforced, (a) it shall nevertheless be enforced to the fullest extent allowed by that prevailing law and (b) all other provisions of these Terms shall remain in full force and effect and shall not be invalidated or rendered unenforceable. This section is not intended to and does not limit or qualify the “Jurisdiction” section above.
No Third Party Beneficiaries. These Terms are not intended to be for the benefit of, and shall not be enforceable by any unaffiliated third party, except as may be specifically provided herein. Nothing herein, express or implied, is intended to, nor shall it, confer on any third party any rights (including third party beneficiary rights), remedies, obligations or liabilities under or by reason of these Terms or otherwise set forth in the Platform, except as may be specifically provided herein. These Terms shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those specifically outlined herein.
No Employment, Joint Venture, Partnership or Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of these Terms or your use of the Platform. You further agree that our performance under these Terms is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Platform or information provided to or gathered by us with respect to such use.
The headings used herein are provided solely for your convenience and have no legal or contractual effect. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Platform to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish of the parties that these Terms and all related documents be written in English. Specific areas, screens, or pages of the Platform may include additional or different terms relating to the use of the Platform. In the event of a conflict between such terms and these Terms, the terms provided on the relevant specific area, screen, or page of the Platform shall control.
Reservation of Rights. All rights not expressly granted herein are reserved exclusively and entirely to us.
Accessibility. If any portion of the Platform is inaccessible to you for any reason, please contact us at 605-684-2104.
Prohibited by Law and International Users.
The Platform is controlled, operated, and administered by us from our offices within the United States of America. The Platform is not targeted towards users outside of the United States, and you agree that any use of the Platform shall occur within the United States. By using or continuing to use the Platform, you represent and agree that you are located in the United States. If you are using the Platform outside of the United States, you agree that you will cease such usage immediately. You further agree that you will not use the Platform in any country or in any manner prohibited by any applicable laws, restrictions, or regulations, and that you are responsible for compliance with local laws.
We do not represent that the Platform, the Listings or our services, are appropriate or available for use in any particular geographic location. You are accessing the Platform on your own initiative. In the event that any aspect of the Platform or these Terms is prohibited by law in your jurisdiction, you agree not to use the Platform or any of our products or services. It is solely your responsibility to determine whether you are allowed by law to participate in the Platform. Without limitation, you release us from all liability that could arise from your prohibited participation in the Platform, prohibited purchase of products or services, or prohibited acceptance of these Terms. Moreover, and without limiting the indemnification otherwise provided herein, you shall indemnify, defend and hold Company Parties harmless for any and all damages relating to a violation of this paragraph or any violation of the law by you.
Without limiting the foregoing, aspects of this Platform or the Listings may be subject to U.S. export controls and may not be downloaded, exported or re-exported: (a) into or to a national or resident of Cuba, Iran, North Korea, Sudan, Syria or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods (collectively, “Prohibited Countries”); or (b) to anyone who is on, or who may be acting on behalf of an entity that is on, the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or otherwise included in General Order 3 (15 C.F.R. Part 736, Supplement 1), which prohibits exports to Mayrow General Trading, affiliated entities and persons and specified persons involved in the manufacture or sale of Improvised Explosive Devises (collectively, the “Lists of U.S. Prohibited Parties”). By using the Platform, you make the material representation and warranty upon which you seek us to reasonably rely that you are not: (a) located in any of the Prohibited Countries; (b) a national or resident of any of the Prohibited Countries; (c) on any of the Lists of U.S. Prohibited Parties; or (d) acting on behalf of any person or entity that is on any of the Lists of U.S. Prohibited Parties.
No Waiver and Acceptance of Terms. Our failure to enforce any term, provision or condition of these Terms, including the breach or default thereof, by conduct, course of dealing, or otherwise, in one or more instances shall not be deemed a waiver. You specifically acknowledge that you have not accepted these Terms on reliance of any representations or other promises of ours, which are not specifically included herein. You specifically stipulate that these Terms do not constitute a contract of adhesion. The gender terms in these Terms shall apply equally to either gender. You acknowledge and agree that ambiguities in these Terms shall not be interpreted against the drafter.
By your use of the Platform, you represent that you have had the opportunity to review these Terms with counsel of your choosing, if you wished to do so. You further acknowledge that you have thoroughly read these Terms; understand that you are giving up certain legal rights that may otherwise exist; have asked any questions you desire to clarify its meaning; and believe it is in your interest to nevertheless utilize the Platform and agree to these Terms.